We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

ASA adjudications snapshot - August 2015

A TV ad for Vanish Gold for whites showed a man soaking one of a number of grey T-shirts with on-screen text stating “6 hours soaking 100% polyester T-shirts”. This T-shirt was then compared to the other T-shirts, with a voice-over claiming that the T-shirt was “three shades whiter” and “whiteness … on a remarkable scale”.

Complaint / Decision

The complainant challenged whether the ad misleadingly implied that the product would have the same effect on non-polyester clothes and therefore exaggerated its efficacy.

The ASA did not uphold the complaint.

The advertiser noted that they provided data to Clearcast relating to the items used in the ad and the on-screen text clarified that 100% polyester t-shirts were used in the ad. However, the advertiser also provided evidence to show that the product had the same effect with soaking socks made of a 75% cotton blend. The advertiser also provided the ASA with evidence to show the product had the same effect on 100% cotton material, polyester/cotton blend and polyamide when used in the washing machine. This evidence had not been shown to Clearcast as the ad was focusing on soaking the garments.

Clearcast had been satisfied that the ad was acceptable as, with the qualification, it made the circumstances of the use of the product clear, namely that it was with 100% polyester and soaking, so viewers would not necessarily believe it would work as well in other situations.

The ASA considered that consumers would view the product as having an equivalent effect on non-polyester clothes. However, the ASA took into account the washing machine evidence relating to 100% cotton clothes and found this to support the effects of the product. The ASA therefore concluded that the ad was not misleading.

This adjudication shows that the ASA may interpret ads more broadly than an advertiser may have anticipated, even where a clear qualification is used. So it is always important to consider implied claims, and also to hold a wide range of evidence in support of product claims. The ASA may, in these circumstances, be happy to take account of evidence not produced to Clearcast.

HEALTH AND BEAUTY

2. Curaprox UK Ltd, 12 August 2015

A magazine ad for the advertiser included the following claims:

“10x more bristles for 10x a better clean”; and

“The more filaments on the head, the more plaque that can be removed”.

The complaint challenged whether the magazine ads were misleading and could be substantiated. The complaint also challenged the comparative claim on the webpage as visitors to the page were unable to verify the comparison. The ASA upheld the complaint.

The advertiser provided a study from the American Journal of Dentistry, which concluded that toothbrushes with a greater bristle density, cleaned more plaque. In line with this conclusion, the advertiser noted that their toothbrush which had 20 bristles per square millimetre, removed more plaque than toothbrushes with fewer bristles. As the study also noted that there may be a directly proportional link between cleaning efficiency and bristle density, the advertiser concluded that with ten times more bristles, they would have a ten times better clean. The substantiation for the comparative claim was based on feedback cards received from professional dentists. The feedback cards contained statements referring to the gentleness and firmness of the brush.

The ASA considered that the “10x more” claim was exaggerated as the advertiser had not demonstrated this comparison against the whole market. The ASA did, however, note that the study would have supported the more general “filament” claim due to its broad nature. However, they felt the study was insufficient to support both claims as it did not address variations of the brush, such as bristle thickness or compositions, and did not appear to be specifically applicable to the advertiser’s brush. The ASA considered “unparalleled gentleness” to be an objective comparative claim and also found the ad to breach the Code on that basis. Although they acknowledged the feedback cards, the advertiser had failed to signpost or provide sufficient information for visitors to understand the basis of this claim.

This adjudication serves as a useful reminder that the ASA will only accept evidence to substantiate claims if it can be demonstrated that it is applicable to the specific claims being made about a product. It also reiterates the importance of ensuring that comparative claims can be properly verified.

3. Coswell SpA, 26 August 2015

The following claims were made via a TV ad, YouTube video and website for a whitening toothpaste and treatment:

“…the only whitening toothpaste with Actilux that reacts to lights…”;

“…now available with LEDx Accelerator”;

“ALSO WITH LIGHT ACCELERATOR”;

“Actilux naturally fights to restore whiteness…”;

“The surprising effect of Blanx White Shock is activated by the light and lasts all day”;

“…contains an internationally patented ingredient…which reacts to light to help whiten teeth naturally”;

“BlanX White Shock formula gets to work straight away and stays active all day long…”; and

“Use…for 2 weeks, 4 times a year, and get teeth up to 4 shades whiter”.

Complaint / Decision

The complainants challenged whether the claims were misleading and could be substantiated. In a detailed adjudication, the ASA upheld the complaint.

The advertiser pointed out that the ad had been approved by Clearcast after a number of challenges to the claims had been made.

The advertiser provided various trials conducted in Italy as evidence, as well as published peer-reviewed journals. The advertiser further explained that customers were satisfied with the product as it had been on sale in the EU for more than 18 months.

Clearcast noted that after reviewing the evidence with their dental expert, they did not consider the claims about the products’ functionality or whitening effects to be misleading. They also found that the ad did not exaggerate the efficacy of the products.

The ASA took expert advice in considering this adjudication. They noted that the peer-reviewed journals, published studies and those conducted by one of the institutions in Italy did not provide adequate substantiation for the claims. In particular, in vitro studies conducted did not necessarily support use by consumers in toothpaste. Although some improvements of teeth whiteness were seen in one of the studies, it did not specifically examine the efficacy of the product in relation to the “4 shades whiter” claim. In another study there were issues as to the proper use of a control group and as to random sampling. Also, contrary to good clinical practice, there was a lack of blinding procedures.

The ASA explained in detail, why each claim had not been substantiated, ultimately leading to the conclusion that the evidence was not robust enough to support the claims.

In line with the Curaprox adjudication above, this demonstrates the importance of being able to demonstrate full and relevant evidence to substantiate claims, particularly where bold claims are being made.

LEISURE

4. The UK Mission Ltd, 5 August 2015

Jon Stewart’s quote “SO F**KING GOOD IT MAKES ME ANGRY” was used in an ad for The Book of Mormon musical in the Evening Standard.

Complaint / Decision

The complainants challenged that the ad was unsuitable for children and offensive to use in a widely publicised newspaper. The ASA did not uphold the complaints.

The advertiser noted that when the ad first appeared in September 2012, with approval from the Evening Standard, they did not receive any complaints. They used an expletive to reflect the nature of the musical and intended to target an adult audience where the language of Jon Stewart was known. The advertiser provided examples where other expletives were used in the Evening Standard.

The Evening Standard explained that they had not received any complaints and that the newspaper was not targeted at children. They noted that there were distressing news articles in the pages preceding the ad and that the newspaper often used explicit language throughout its editorials. The Evening Standard explained how the explicit word was not used in a sexual or provocative manner but demonstrated the extent to which Jon Stewart enjoyed the show.

The ASA considered the use of asterisks and the context the word was used in. They noted that it did not have a sexual meaning but emphasised how much Jon Stewart enjoyed the show. This was in line with the language he used in his television show and the adult content of the musical. The ASA understood the Evening Standard to have a predominantly adult readership making it unlikely that it would appeal to children.

This adjudication shows that, although it is important to ensure ads do not contain anything which is likely to cause serious or widespread offence, proper targeting and appropriate referencing can avoid a complaint being upheld.

5. The Generation of Z Ltd, 12 August 2015

A poster on the London Overground advertising a live zombie experience, contained an image of a zombie’s head looking towards the viewer along with the following text, “THE IMMERSIVE LIVE EXPERIENCE … THE BATTLE FOR SURVIVAL HAS BEGUN”.

Complaint / Decision

The complainants challenged whether the ad was suitable for display on the London Overground where children could see it. The ASA upheld the complaint.

The advertiser explained that they were trying to convey the adult theme of the show but acknowledged that the image of the zombie could be seen as distasteful. They were now rebranding the show with another advertising agency, to appeal to a wider audience.

The outdoor advertising company explained that, although they had not seen the image until the campaign went public, they had not received any complaints.

The ASA considered the poster to promote the horror theme of the show to an adult audience. Although they noted that it would not cause distress to adults and older children, the ASA considered it could cause distress to younger children. They also considered the ad was likely to be seen by young children on the London Overground.

This provides a useful contrast to The UK Mission Ltd adjudication above. Both of these adjudications show how important it is for advertisers to understand their responsibility in appropriately targeting their ads via appropriate mediums.

6. Mind Candy Ltd t/a Moshi Monsters, 26 August 2015

An online game allowed users to join and play for free but only provided certain activities and other extras with a paid membership. The website contained the following as on–screen text:

“Join now for Exclusive Member Benefits”;

“The basic version of Moshi Monsters is free (sign up here) but Members get exclusive access to all sorts of cool extras”;

“MEMBERS GET MORE MISSIONS AND Unique Moshlings! Epics With Prizes Cool New Game! JOIN NOW!”; and

“ATTENTION: YOU NEED TO BE A MOSHI MEMBER TO ENTER THIS AREA ABOUT MEMBERSHIPS!”

Complaint / Decision

The Competition and Markets Authority challenged whether the ad was in breach of the Code as it appeared that the game was targeted at children and contained a direct exhortation to purchase membership. The ASA upheld the complaint.

Upon receiving the complaint, the advertiser amended the on-screen text, including the removal of “NOW” and rewording the description of the extras which was below the on-screen text.

The ASA considered the game to appeal to young children. They noted that the box containing the statement, “JOIN NOW”, appeared as a command to purchase membership. Even though they considered there was an ‘x’ to click out of the box, the ASA felt this was out of the way and much smaller than the text. The ASA noted that the actions on the membership page, notably “JOIN” and “Join now for Exclusive Member Benefits” were also phrased as commands to purchase membership. Although these links directed users to the page where subscription could be purchased, the ASA considered that the use of such wording was not necessary. The ASA concluded that the wording used for the benefits of membership, namely, “The Super Moshis need YOU” and “Members are going to be super popular”, directly exhorted pressure on young children to purchase the membership.

7. 55 Pixels Ltd t/a Bin Weevils, 26 August 2015

An online game allowed users to participate in free activities but also had the option to purchase membership which entitled users to additional benefits. The game contained the following as on-screen text:

“BIN TYCOON MEMBERS ONLY! ADOPT THE PERFECT BIN PET! JOIN NOW”;

“What can you spend dosh on? EXCLUSIVE NEST ITEMS BRILLIANT BUNDLES BIN-CREDIBLE BIN BOTS AMAZING HATS How do I get Dosh? BIN TYCOON Become a Member DOSH Top Up”; and

“GAME OVER You won 100 Mulch! Play again tomorrow! Bin Tycoons get more spades to dig for more Mulch! BIN TYCOON Become a Member”.

Complaint / Decision

Following another complaint by the Competition and Markets Authority (“CMA”), again that the game was targeted at children and contained a direct exhortation to purchase membership, the ASA again upheld the complaint.

Upon receiving the complaint, the advertiser revised the ads to state “About Membership”. They were unaware that their approaches with the ads were potentially in breach of the Code. They noted that the ads did not appear spontaneously in the game but only when a player tried to carry out an action restricted for paid members. They further noted that each ad had an ‘x’ to allow users to click out of them.

In a very similar adjudication to the above, the ASA considered that the game appealed to young children. They noted that the phrase “BECOME A MEMBER” appeared as a command to purchase membership. As noted in the Mind Candy adjudication, the ‘x’ for each message was out of the way and small in comparison to the main text. The ASA considered the use of “DOSH Top Up” as unnecessary when trying to explain how to purchase in-game currency. Again, the ASA noted that the phrase was a command and concluded that the game contained direct exhortations aimed at children to purchase membership and in-game currency.

The ASA generally has a strict approach when considering ads targeted at children and direct exhortations to children, reflecting the social responsibility advertisers have towards children. Advertisers should always be mindful as to how their ad may appear to them and to avoid the exploitation of a child’s inexperience and vulnerability.

However, these two adjudications were also interesting as complaints brought by the CMA, as part of the CMA’s wider work to encourage the industry to address issues relating to how online and app-based games are advertised and paid for. This follows the Office of Fair Trading’s investigation in 2013 into the ways in which online and app-based games encourage children to make purchases and the publication of its finalised principles for online and app-based games in January 2014. Since then, the CMA has been working on this with other European and International consumer protection bodies. Google and Apple have been reported as having made changes, in particular to strengthen payment authorisation settings and to ask games makers to stop describing games as ‘free’ when they contain in-game purchases. These changes are designed to prevent parents being landed with unexpected bills arising from in-game purchases made by their children.

The complainant, who had visited a number of stores but had found no stock available, challenged whether the advertiser had made a reasonable estimate of the demand for the product. The ASA did not uphold the complaint.

ASDA used two previous promotions for Pepsi, namely in October 2014 and January 2015, when estimating factors such as likely demand, promotional price and the amount of in-store space. ASDA explained that when an issue of stock was identified in a store, stock would be diverted from stores with excess supply. Clearcast approved the ad on the assurance that ASDA would immediately remove the ad if stock ran out.

The ASA considered that the use of “subject to availability” did not mean a reasonable estimate of likely demand could be omitted. However, although the previous promotions slightly differed in price and duration, the ASA considered them to be a reasonable basis on which to estimate demand. They concluded that this, along with the replenishment of stock from stores with excess supply, meant the ad did not breach the Code.

This adjudication serves as useful reminder that advertisers must always be able to demonstrate that they have provided reasonable estimates when advertising price promotions. As seen here, this can be, and often is, in the form of data from previous promotions. However, care must always be taken in this respect, particularly with an increase in the use of social media and online forums to advertise these sorts of promotions.

9. Wm Morrison Supermarkets plc t/a Morrisons, 26 August 2015

A TV ad and press ad for a “Morrisons Match & More Card” which price matched a customer’s comparable grocery shop with other named supermarkets had the following as on-screen text, and small print text for the press ad, “Minimum £15 spend including one comparable product… Difference given in points on your Match & More card…Maximum 10,000 points per shop…Terms, conditions and exclusions apply” with directions for more detail either on the website or in store.

Complaint / Decision

Aldi along with other complainants challenged whether:

the ads made clear how the card worked and whether the comparisons were misleading;

the verification information was sufficient;

the £15 minimum spend was sufficiently clear;

the ad made it sufficiently clear that points would be awarded on the card, rather than cash, which could be redeemed at Morrisons, once you had a minimum of £5 worth of points; and

the ad made clear that points were awarded for the overall difference on an entire shop, rather than individual items.

The ASA only upheld the second complaint.

Morrisons explained that information on how the comparisons worked was on their website. They explained their methodology in detail, including the use of illustrative and specific examples. As the ads did not refer to price comparisons, Morrisons questioned whether the verifiability requirement applied. Nonetheless, they explained again that they had provided information on their website. They provided competitors’ ads as evidence to show that they displayed the minimum spend information in the same way as competitors had for similar schemes. Morrisons noted that Clearcast had approved the wording relating to “points”. They again used competitors’ ads as evidence to demonstrate the use of “comparable grocery shop” as a way of explaining the scope of the scheme.

In relation to the first challenge, the ASA considered that the ad made the process of the scheme clear and noted that further information was available on the Morrisons website. They understood from the evidence that a large proportion of Morrisons’ products were matched under the scheme in a reasonable and appropriate manner.

The ASA concluded that the verifiability requirements did apply as the ads identified a number of competitors, so there therefore needed to be an objective comparison of “one or more material, relevant, verifiable and representative features of the products” used to make the comparison. Therefore, Morrisons needed to signpost in the ad, the methodology they used to make their comparisons with the competitors. They also needed to provide a facility for their customers to obtain specific details about the products that had been compared with competitors’ products, including prices, and how their points total was calculated. The ASA explained that Morrisons did not provide sufficient information about the methodology on the webpage and had not provided a clearly signposted facility.

The ASA did not uphold the remaining complaints as they considered that Morrisons had been sufficiently clear for each of them.

When making competitor claims, it is important to signpost the relevant methodology clearly. Advertisers should also remember to state clearly the process by which the product price comparisons are made.

ELECTRICAL APPLIANCES

10. DSG Retail Ltd t/a PC World, 26 August 2015

A savings claim for a TV stated “£1,999.00” followed by smaller text stating, “was £3,499.00 (£3,499.00 from 10/09/14 to 01/10/14” with a final statement of “Save £1,500.00”.

Complaint / Decision

The complainant challenged whether the savings claim was misleading and could be substantiated. The ASA upheld the complaint.

The advertiser argued that they complied with the BIS Pricing Practices Guide and the Code by showing the price of the product along with clear dates when the higher price had applied. They said they could provide evidence to show that the market price was £3,499 for the relevant period.

The ASA said it had not seen evidence relating to the pricing history of the product to show that the higher price was the usual selling price. They acknowledged that the ad contained smaller text outlining that the higher price had been available for three weeks, more than six months prior to the ad. However, the ASA considered that this did not represent a genuine savings claim as it was unlikely that the higher price was actually the usual selling price, rather than a higher price at which it had been sold for a time.

Advertisers need to ensure they have such evidence to substantiate savings claim in order to remain compliant with the BIS Pricing Practices Guide and the Code. Clearly it is important to include relevant details, so as not to be misleading. However, even if an advertiser is able to verify such a specific claim, the advertiser still needs to show that the higher price was a genuine usual selling price.